65 comments:

eggs-ackly. opponents are trying prove a negative. And, they are asking for the reactionary reaction when there is no economic imperative: the reactionaries will give them lip service, but no real support. Between so-called liberalism and libertarianism they have no chance, they lose from both sides

I agree that it will be 6-3 in both cases. However, if the overturning of the outcome of Prop. 8 is upheld by the Supreme Court, we will no longer live in a self-governing nation in any real sense of those words.

Where does this leave polyamorous clusters? It's estimates there are 500,000 such relationships. They tread lightly in making themselves known in general society, but worry about child custody, financial and tax matters.

But second, you probably won't lose. In fact, I predict a win by more than a 5-4 margin.

If nothing else, the justices will invent a rational in favor of the same sex marriage position. They've been quite an inventive group many times. But, there's a sounder basis for allowing same sex marriage than allowing for Obamacare.

Wait--what, exactly, is the "win" Professor Althouse predicts by greater than a 5-4 margin?

1) Striking down a portion of the Defense of Marriage Act?

or:

2) Supporting the striking down of Prop. 8 for some reason or another?

or:

3) Declaring a right to "same sex marriage" under the Constitution?

Those are very different sorts of "wins"; I can see a 5-4 or better for item 1, easily; item 2, not as readily, but then I'm not a lawyer; but item 3? Only 3 votes against a constitutional right to "same sex marriage"? Those three would most likely be Scalia, Thomas and Alito.

It would be helpful if our genial hostess spelled out what she's predicting, if she would be so kind.

I see a solid win on DOMA, at least as far as requiring the Feds to honor all marriages recognized by a state.

Prop 8 is not clear at all, since the initiative amendment was written, circulated, signed and qualified for the next ballot BEFORE the state supreme court "found" the equal marriage right hiding in some penumbra.

The state supreme court that had established the marriage right pointedly refused to undo Prop 8, and it heard all these arguments.

I voted against Prop 8, and I support marriage equality, but not on the basis of "by hook or crook." Let's not repeat the strategic mistake of Roe.

“It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence,”

"Deeply ambivalent about out very existence"? I bet they not at all ambivalent about their existence. Maybe about their right to change the law to satisfy their agenda. Hyperbole from liberals is pretty standard. You'd think the SC were about to declare a roundup.

There is a simple way out of the whole gay marriage thing, and it requires no change in the law.

Churches that are offended by the state's definitions could stop treating their ceremonies as creating a civil bond, telling their members this is in the eye of God only, and if you want Caesar's approval, go to Caesar. Makes it really hard for the state to make them perform gay unions.

wyo sis said...It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence,

"Deeply ambivalent about out very existence"? I bet they not at all ambivalent about their existence. Maybe about their right to change the law to satisfy their agenda. Hyperbole from liberals is pretty standard. You'd think the SC were about to declare a roundup.

Of course, Roberts is Mr Favor, Scalia is Mr Yates, Alito is Clay, and Kennedy is Pete, but who's Wishbone?

The DOMA should be repealed by Congress before the case is even heard. If not, the Court should strike it down. As for Prop 8, the Court should reverse 9-0. Only 9 states have gay marriage. 9 states can't amend the constitution.

And something else: As was asked what about polyamourous groupings; HOW can the USSC say that gay marriage is 'ok' but three-somes, foursomes, etc aren't?

It will be the law of un-intented consequences that is gonna come back and bite them right in their collective ass.

Same with legalized pot; I read today that some guy on 'medical' marijuana doesn't want to have laws against driving while high.His case was thrown out but wait, SOME judge somewhere will agree with the premise and then after people are killed by some stoner driving to the Quikee Mart there will be no jail time because, well, he *needed* the dope for his glaucoma.

I too would love to see a convincing argument for marriage as a "basic right." The hysteria over not being able to get married is utterly mystifying to long-term, solid, cohabiting couples. Many editorials use language you would expect to read in an article about torture or starvation: SS couples have to "endure" their unmarried status, as if they were being flogged for it!

This, like many other ridiculous and idiotic social "wedge issues", could be easily solved by simply doing what should have been done long ago: remove the State from the issue altogether. Voilà! No more contentious arguments in the public political sphere about how the government should or should not define "marriage". No robed lawyers writing lofty prose poems about sacred rights or sacred traditions. No more elections lost to economically-illiterate left-wingers because they nominally represent enlightened "socially liberal" positions.

The definition of marriage would be left where it should be left, in the private sector. Churches could continue to define and perform marriage as their doctrine guides them. Secular people could have commitment ceremonies. The legal issues of custody, property, insurance, etc, could be solved by a neutral legal contract between parties.

I agree that it will be 6-3 in both cases. However, if the overturning of the outcome of Prop. 8 is upheld by the Supreme Court, we will no longer live in a self-governing nation in any real sense of those words.

That ship sailed years ago. We don't have a federal government any more. We have a national government, which is why DC is booming while the rest of the country is stuck in the doldrums.

The state supreme court that had established the marriage right pointedly refused to undo Prop 8, and it heard all these arguments.

Because of the screwy way initiatives work in California, Prop 8 actually amended the state constitution. So the state supreme court couldn't strike it down on constitutional grounds.

The issue in Strauss v. Horton was whether the initiative was an amendment or a revision to the state constitution. An amendment requires a simple majority, while a revision requires a 2/3 majority (which Prop 8 didn't get). Once the court decided it was a legal change to the constitution they would have been hard pressed to declare it unconstitutional.

And the soundest basis of all for leaving the definition of marriage up to churches and individuals and keeping the secular government out of it altogether.

Which would be fine except the state is pretty much going to be involved in the dissolution of marriage. If what you're saying is we ought to have a domestic-partner-type legal arrangement under which both hetero and homo relationships fall and then a religious ceremony (or not) without any legal standing, then I agree.

Unintended consequences alert!! Gay marriage is approved and the assault on twoism begins at once. How can the state recognize same sex couples, yet deny the polygamy found around the world. Around the world means it is multi-cultural! It is diverse. And after polygamy is on the plate, the variations are without bound. I personally favor Heinleinesque line marriages. And why leave out the high end cousins?

Beyond the multiplicity of marital models, we can expect an assault on the common sensibilities in the educational system of the usual states. Hetero-centric public education will soon be challenged. Corporate homosexual-friendly-norming training is surely unfurling its dread rainbow banner just over the horizon. Oh yes, precious, there will be nasty surprises.

And that's why you shouldn't be teaching "law". Please, you don't even know what a natural born Citizen is!!! This is all so predictable, since the Usurper stocked the Court w/ dykes.

Everything he does is against the natural law that is the basis of our law. There is no "right" to marriage. "Marriage" is only recognized by the state as a way to legally recognize parental obligations and to propagate the citizenry---- which Gay "marriage" needs and does neither. As for the Federal recognition of State laws, the court will have to rule that since Colorado legalized marijuana then its residents are immune from prosecution by other states--- good luck w/ that.But yes, I would say that the vote is at least 6-3, since the loony Ginsgerg/ Dyke wing is in the bag, plus the compromized and blackmailed Roberts.

Outside of the legal arrangements that people can set up themselves, what does the state offer to gay couples?

I can only think of upside for gay couples, and no upside for the state or society. Let's leave aside the lesbos, for the moment, who are now being shown to raise children with different characteristics from the norm.

This seems like another stupid giveaway, with no upside, only downside.

. If what you're saying is we ought to have a domestic-partner-type legal arrangement under which both hetero and homo relationships fall and then a religious ceremony (or not) without any legal standing, then I agree.

Yup, that's what I'm saying. The problem is that, currently, the State is presuming to define a social/religious institution, which is "above its pay grade".

How does the federal government determining the rules for marriage, either way, square with limited powers for the federal government? How does having judges make law fit in with self rule and representative government?

Palladian, your proposal does not address the main goal of gay marriage proponents. This is not about giving gays the freedom to marry. For the most part, but not completely, they already have that. They can go through a ceremony, call themselves married, their family and friends can call them married. They can adopt and in most places civil unions cover things like hospital visits and equivalent workplace benefits.

This is about reducing the freedom of gay marriage opponents. Under your "make it all private" proposal, those that consider gay marriage to simply be impossible and thus a fraud would still be legally allowed to have and act on that view. They could refuse to host gay marriage ceremonies in their buildings and businesses, refuse to provide flowers if they own a flower shop, refuse to consider gay "spouses" spouses if they are employers and so on. This, to gay marriage proponents, is unacceptable because they can get more. Why should gay marriage proponents settle for privatization when they are about to get the government to force the acceptance by all private citizens that gay marriages are the same as heterosexual ones?

This is how totalitarianism in the age of modern liberalism manifests. Freedoms become behaviors that must be imposed on others. Slice and dice the population into small segments and support the wedge issue for that group and they'll be so grateful, they'll support you on everything else. It doesn't matter how small the segment is, magnify their issue to one of great importance upon which the future of mankind depends.

Gays are, what, 3-5% of the population? If you survey people on what they believe the population of gays is, you typically find they think it's much higher, like 25-30%.

That's interesting. On the case in California whose challenge at the state level failed in every respect save its stayed implementation, Seven Machos predicted a massive, perhaps even ignominious defeat. This was apparently not to be.

But both he and you predicted Romney blow-outs.

Determining whether the even more intelligent ones here might achieve the benefit of empirical validation on their side is a real doozy. I keep hoping that it will one day occur.

Libertarians in America seem to love the idea of giving private actors more freedom to control your life. It is ironic the extent to which they seek to give up opportunity for the promise of a perceived order that restricts their rights and autonomy no less than a government could, just so long as that order is seen or approved of as "natural" or organic. If the attack on one's rights stems from the society itself, and the society alone, then that is somehow great, wonderful, and wholly legitimate.

Anyway, religious institutions will still have their freedom to deny the right as defined by that particular church (eh, time to revive a certain definition of the word "parochial"?); that kind of discrimination will (and should) be allowed to stay - so feel free to celebrate that all you want. GO private actor discrimination and intolerance! Woot!

The legal issues of custody, property, insurance, etc, could be solved by a neutral legal contract between parties.

I'm actually sympathetic to this idea insofar as I'd love for the "idea" of commitments to be as devoid as possible of ulterior motives. Lord knows that marriage largely is not. To frightening effect when you look at how a large number of them end (and don't end).

But there are a whole host of fourth parties to this "institution", insurance companies being just one. These fourth parties would have to put forth a definition for marriage that suits their purposes, and the government is a great leveler when it comes to standardizing things, when it wants to be. Otherwise you'd just have loads of lawsuits over whether it was right for an insurance company to surreptitiously decide that the gay spouse lacks coverage rights, and a demand to define the legitimacy or lack thereof at a broader level. Which just brings us back to square one, of course.

No. Fair point. I was tongue-in-cheek referring to cases in general like Roe v Wade where life as a right is "settled" by a few citizens appointed to a court.

I understand. Roe v Wade is a different story, since the issue of abortion (arguably) involves the rights of at least three parties: the mother, the father and the unborn child. I firmly believe that there's a sound, secular, libertarian argument to be made against abortion.

Palladian, your proposal does not address the main goal of gay marriage proponents.

I wasn't intending to address anything except my opinion of the only sensible solution to the false problem of State-defined and administered marriage. Your supposition about the "goal" of gay marriage proponents (assuming you are referring to a majority of them and not some fringe extremists) is, however, delusional.

We have the right to redefine words and legislate legal definitions, but I have a problem with courts doing that for us.

Again not to be repetitive, but I hold onto the man/woman definition, because I live in a community with high rates of unstable living situations for children. Fathers matter as much as mothers, and when ever they can parent together in a healthy manner under one roof, that is a societal interest one can have.

But instead I'm being portrayed as someone who hates gays and their rights, that I have something against their existence.

It's sucks, that I have been wrongfully accused as a homophobic bigot. Parental rights and obligations matter, and to facilitate that we had marriage for the sake of children to be raised by their own kin. Can't call it marriage, well I find something else to call it. What then? Accuse me of using code words for being anti-gay.

Right now our society doesn't value that as marriage, so it has every right to redefine words to fits it wants and desires. Again better off done by ballot and legislature, then by courts.

The truth is, if we're at the point where the very fundamental underpinnings of society are in the hands of nine people, we are already done for. The point of no return is in the rear view. We'll get what's coming to us, good and hard, no matter what the vote is on this abomination.

Let's ratchet up those emotions now, people! Everybody act scared and oppressed on cue. Don't worry about exaggerrating or lying; no one in the media will ever, ever, ever question your credibility.

"four or five of them are deeply ambivalent, at best, about our very existence."

See, that's how it's done. This dude is already married so, what to say when called upon? Why, whine about a completely fanciful made-up existential threat posed by the eeevil "haters" on the court, of course!

I take this completely political issue so very seriously. All the rights that could have been recognized 10 years ago were ignored for political gain.

Why NOT be ambivalent about the existence of gay people? I'm in favor of gay rights and a supporter of gay marriage, but I don't think the existence of gay people makes the world a BETTER place. I just don't think their existence makes the world a worse place.

If there were no gay people at all, why would I care? It isn't like an absence of gay people would threaten the existence of humanity, the way an absence of heterosexual people would.

Hell, what's wrong with same sex marriage, just because it upends thousands of years of history? Nothing wrong with it, let's just go with the flow. After all, it's not like after this crusade gets it way that anyone will be talking about why bestiality is private sexual conduct that shouldn't be regulated by the state or anything. http://www.volokh.com/2012/12/05/zoophilia-sex-toys-and-the-consitutional-protection-of-autonomous-sex/ Nope, everything will stop with legalization of same sex marriage, no slppery slope there at all, nothing to see here. Just move along now, folks.

Palladian, the libertarian in me is strongly tempted to go along with this.

But then I stop and re-realize: there is something wrong with the notion that our governing institutions should no interest in promoting long-term stability throughout the generations. Ultimately, this is part of the reason why one of the books I won't quite manage to get around to actually writing is titled Why I Am Not A Libertarian.